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Why the City Charter is Important
The only thing that kept me sane while I was combing through the consolidate city charter was me reminding myself that it isn’t a new charter, it is imperfect amalgamation of two unworkable charters with large leather stitches and electrodes to spark it to life. There was nothing in it to suggest that we will have a better city government afterwards; all that we will know is how incredibly screwed up we are.I am sure that it wasn’t easy digging up the parts, assembling them in some sort of order, sewing them together and putting the electricity to them; so, there are spelling errors in it (as there probably are in this article) and an “of” instead of an “if”: I can live with that. But noticeably missing from the new-old charter were these glaring things: here are spelling errors in it (as there probably are in this article) and an “of” instead of an “if”, I can live with that. But noticeably missing from the new-old charter were these glaring things:
1.) The charter fails to mention that a charter is not simply a document, it is a constitution between the citizens and those that shall govern them; a sub-category of the state constitution, itself a sub-category of the federal with the citizens’ rights protected and the government’s restrictions enumerated. In this Frankencharter, the voters are mentioned only to have the right to choose its local leaders, and its local leaders, get this, in SECTION 1.4 POWERS OF CITY; CONSTRUCTION OF CHARTER PROVISIONS, paragraph B. The provisions of this Charter shall be construed liberally[1] to effectuate its lawful objectives and purposes.
“Construed liberally?” In other words, we may make mistakes in reading what we are supposed to do and executing what we wrote, and maybe even creating grief for our citizens, but we mean well, so let’s do it anyway – you know, like the new trash totes roll-out?
It would be far better if the document was written such that there is no ambiguity in what our government can and are supposed to do or not, and that we will closely follow our charter.
2.) Do you know what that room that is next to the council chambers is called? It is called the Committee of the Whole Room. The other glaring thing that is missing from the charter is that there is no remedy that city councilors who fail to accept the chairman’s appointment to various committees, as a duty and condition of their service, are not asked to resign. Under ARTICLE III CITY COUNCIL AND LEGISLATIVE BRANCH , Paragraph D., the Council shall be constituted, and shall meet from time to time, as a committee of-the-whole. The Council may establish ad hoc and/or standing committees of its own members to review and make recommendations relative to proposed legislation, but such legislation shall be acted upon by the Council as a committee of-the-whole. The Council Chairman shall appoint or reappoint the members and designate the Chairman of each committee to serve from date of appointment or reappointment until the next succeeding January one.
But have they been compelled to do so? The only one of which I know is the Financial Advisory Board, but which councilor was chairperson and who listened to them?
Folks, you asked for part-time counselors and begged them to reduce their benefits, and you got what you got. These are not fulltime- counselors, and even if they were, they would have an extremely difficult time becoming knowledge experts on all of the many elements that needs governing in this multifaceted city. We know that they can’t by virtue of the current results. But if each councilor took upon themselves to be expert in three or four of these facets, and act as board experts, advising their colleagues, we could not help but become a better city.
One more thing, in this #metoo world, but this is near the end of the 152-page charter. While the duties of the Niagara Falls Cable Television Commission are enumerated, the Niagara Falls Human Rights Commission isn’t. In fact, the virtually fund-less commission becomes a sub-department of Human Resources and remains right where it is in total ineffectiveness. The Commission once had its own executive director and staff to handle the diversity of issues that our citizens and even city employees face. I know what it was, because I was a commissioner back then.
Here’s another one, especially for a heavily Democratic city – not that that should matter; but SECTION 2.11 PROHIBITED ACTIVITIES, includes a prohibition from appointing or removing any person, or in any way favoring or discriminating against with respect to any official City office; employment or position because of ethnic origin, race, sex, political or religious opinion, or affiliations. Now before we go any further, what must be added is sexual preference verbiage as well. But with that said, and the city’s history of ethnic group power, how then do we move to make the city’s workforce look, well, more like the city? How then do we meet affirmative action goals if two candidates are otherwise equal, how then do we determine who fills the position?
But enough, let’s start picking the charter merger apart to know what is in it. Again, the liberally of it concerns me. All regulations should be properly written so that its clarity would allow strict interpretation based upon what was construed. This is a charter between the residents of the City of Niagara Falls and its government on how its government should operate, what powers are given to it and what restrictions apply.
A questionable thing about the charter is that, ideally, the mayor should be back on the council and a professional and protected city manager should be hired, one who’s run a city before. The Manager should be exempt from living in the city to politically and objectively protect him or her. A good thing about the charter is the requirement that the city administrator must have proven education and experience in running government entities; but it doesn’t set what the proof is. But kudos to the council in requiring the mayor to attend the administrative sessions and take filtered questions from the audience, though I have yet to find it in this charter – I am still looking. What is missing though, is that the citizens are only by rule allowed to speak during public hearings, and for as long as necessary. The speaking session during the legislative segment is at the whim of the council itself, and you are not guaranteed to do so. The 5-minute speaking opportunity should be guaranteed by the charter.
Troubling is that while it requires city council consult and consent to hire a Clerk, Corporate Counsel and a Controller (ambiguously referred to as a Finance Director in parts of the document), it doesn’t take the mayor any of that to fire one for what the mayor feels is incompetence. Now he has to follow civil service rules to do so, but if the council needed consult and consent for officers that they would share with the mayor, then the same should be afforded to them for that person’s termination for any cause; else the joint employees would be more beholding to the mayor than to the council.
Tell me if you clearly understand this at your 1st or even 2nd reading: SECTION 2.8 VACANCIES; CONTINUITY OF GOVERNMENT, Paragraph A.
A vacancy in the office of Council member, other than by expiration of term of office, shall be filled at the next general election which is held not less than sixty (60) days after such vacancy occurs for the unexpired term of said member.
Now you see why the charter needs to be written more clearly, and why construing it liberally would be baffling?
Another point of contention would be that the mayor can fill council seats IF after a vacancy the council doesn’t do so after 20 days. The rub is that the replacement must be of the same party as the one that created the vacancy.
Logical, but not necessary rational. In Ontario, no one runs on a party line until they reach the provincial (state) level, and the results show. What’s party to do with competence? But what further compounds this is if the mayor cannot serve and a city councilor is chosen, by charter, to replace him/her, and the mayor is of a party not the same as the councilor? Must the councilor be backfilled with a person of the mayor’s party? The nuances go on; but if party is germane, then these issues need to be resolved prior to accepting the Frankencharter.
In the charter’s address of the incapacity of the mayor, that city councilor can be selected, but that brings up the issue of separation of powers – and the signing of the contract for the new public safety building on Main Street. CASE STUDY: Then Mayor Vince Anello wasn’t content with elements of the contract that the council approved, and before signing it, he decided to take a mini-vacation, assigning the duties to then-Councilman Lewis “Babe” Rotella, who voted on it and then signed it. Where were the separations of power on that?
The good thing about the charter is that for short absences by the mayor, anyone in the administration can replace him, including his city administrator; and that would be the proper thing to do. There must be clear cut – not liberally construed – wording that requires the mayor to choose the administrator or other qualified, competent department heads of staff to fill in for his executive duties, leaving to the council the ceremonial duties upon which they have not voted. The closer that these two branches become, the more they collide.
There’s nothing new about SECTION 2.5 PROHIBITION ON ACTIVITIES OF CITY OFFICERS. While the charter defines “Officer” and says that it shall mean all elected and appointed officers, members of boards, agencies, commissions and like instrumentalities, head of departments and their deputies and any others so designated by or pursuant to law and this Charter; it says that an officer of the City shall not engage in private employment, render services for private interests or hold office in any other political, jurisdiction if such employment, service or office is incompatible with the proper discharge of official duties or would impair his or her independence of judgment or actions in the performance of official duties as hereinafter provided. With that said, one has to wonder about the repaving of 10th Street and other projects around the hospital. The regulation says nothing about abstaining, but I may find it when I take the Afro pick through it once more, but it is clear on employment and the likes – and that’s a good thing.
Did you know that SECTION 3.2 ORGANIZATION: PRESIDING OFFICER; CITY CLERK; CORPORATION COUNSEL; COMMITTEES would allow the mayor to dictate who the city council chairman would be? It says that the Council shall annually elect a presiding officer from among its members at the first meeting in January who shall be known as the Council Chairman. The Chairman shall be elected by a majority vote of all Council members and shall serve for a term of one year to end December 31 of that year. If a Chairman is not elected by January 31 of each year, then the Mayor shall appoint him or her. The Chairman shall preside at all meetings and shall then have the same powers as all Council members to introduce and vote upon all matter coming before the Council. In the event that the office of Chairman shall become vacant, the Council shall appoint another one of its members to fill the vacancy.
Now here’s the ambiguity in that: can the mayor appoint a non-councilor to the chairmanship, and then thereafter, if that person resigns or is otherwise incapacitated, then the council can choose one of their own from within their ranks?
As Councilman Bob Anderson often said, “Scary!”
More to follow at the ongoing www.niagarareporter.com website and in next week’s paper.
